30 June 2011

BBC Radio 4: Law in action (Scotland)...

Just a wee post to draw your attention to this edition of BBC Radio 4's, Law in Action. In this week's edition, first broadcast on the 28th of June, a half hour is spent discussing Scotland's distinctive legal system. Presented by the English legal journalist Joshua Rozenberg (and, as I lately discovered, spouse to Melanie Phillips), the programme ranges widely across various topics of recent legal interest for Scots, including the UK Supreme Court ruling in Her Majesty's Advocate v. Cadder, the outstanding insurers' appeal against Holyrood's Act pleural plaques before the same Court - and our procedural idiosyncrasies, including the not proven verdict, majority jury verdicts, and the requirement for corroboration. Rozenberg talks to a number of weel-kent Scots legal figures, including the University of Edinburgh's Professor Hector MacQueen, the fantooshly-face-furnitured Donald Findlay QC and Lord Carloway, who is presently reviewing Scots Law in the light of Cadder. The Scottish Government have given Carloway the following Terms of Reference:

(a) To review the law and practice of questioning suspects in a criminal investigation in Scotland in light of recent decisions by the UK Supreme Court and the European Court of Human Rights, and with reference to law and practice in other jurisdictions;

(b) To consider the implications of the recent decisions, in particular the legal advice prior to and during police questioning, and other developments in the operation of detention of suspects since it was introduced in Scotland in 1980 on the effective investigation and prosecution of crime.

(c) To consider the criminal law of evidence, insofar as there are implications arising from (b) above, in particular the requirement for corroboration and the suspect's right to silence;

(d) To consider the extent to which issues raised during the passage of the Criminal Procedures (Legal Assistance, Detention and Appeals)(Scotland Act) 2010 may need further consideration, and the extent to which the provisions of the Act may need amendment or replacement; and

(e) To make recommendations for further changes to the law and to identify where further guidance is needed, recognising the rights of the suspect, the rights of victims and witnesses and the wider interests of justice while maintaining an efficient and effective system for the investigation and prosecution of crime.

Carloway's review continues. Rozenberg also discusses an issue exercising Holyrood this morning - and which appeared on this blog earlier this week - the role of the UK Supreme Court in Scottish criminal appeals. The programme doesn't go into any depth on any of these topics - its pace is breakneck and its analysis air-light - but it is always pleasing, even in a brisk half-hour BBC programme, to see Scotland's distinctive legal system recognised and discussed.

6 comments
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I've always found Joshua Rozenberg to be measured and reasonable in his analyses and I must admit, when I learned that he was married to Melanie Phillips some years back, that it made me see her in a somewhat less harsh light, even if I still think her a bit of a 'wingnut', something I have never thought and do not think Rozenberg to be.

After the recent UK Supreme Court ruling, which I must admit I find quite unexceptional whilst the UK retains its present constituent parts (and of course it is my fervent hope that Scotland always remains a part of the UK), I did spend some hours studying the UK Supreme Court website and was unsurprised to find that the members of the Supreme Court are, very roughly, drawn from the different parts of the UK proportionate to the populations of each part - if I recall, two are Scottish lawyers qualified under Scots Law and one is from Northern Ireland - and that the two Scottish members were closely involved in the recent ruling. Seems perfectly reasonable to me - and apart from that I have always been troubled by the Matt Fraser conviction being based solely on circumstantial evidence, so the ruling is one I welcome.

I think Salmond is making a noise about this for purely partisan political reasons - and at all costs we must not allow our justice system to be politicised. I hope his unseemly intervention is not an indicator of what justice in Scotland might become should Scotland decide to separate itself from its Union with England in the United Kingdom.

Of course I am not a lawyer, merely an interested and somewhat concerned layman.

Think of it more as a felicitous request, rather than a rule. I certainly shan't be cracking heads when folk cheerfully flout it.

Bill,

Your disposition is clearly kindlier than mine. I discovered only this week about Rozenberg's Phillips connection - and it made me wonder if he was a secret fruitcake, despite his undoubted capacity for measured and useful legal analysis which you allude to.

On your general point about the UK Supreme Court, I've discussed my own views several times before. More specifically, on the Court's personnel - you are quite right. Lord Kerr is from a Northern Irish legal background. Lord Hope and Lord Rodger (who you may know, recently died young and in harness) were the two Scots judges. This arrangement is only conventional, but I expect efforts will be made to replace Lord Rodger from qualified Scots judges.

As I've noted elsewhere on this issue - the controversy isn't predicated on any developed understanding about the contents of Scots law - or English law for that matter. Although folk express certain sentiments about Scots distinctiveness - it is the distinction itself, and the sentiments which attach to that distinction - rather then the ways in which Scots law is different, which gets these Nationalists going.

Correlatively, there is relatively little understanding about what Scots Law Lords and Justices might have contributed to the wider jurisprudence across the jurisdictions of the UK. Relative ignorance cuts both ways.

“I think of him more of a long nosed, elegantly coiffed Afghan pawing through his leather bound library whilst disdainfully inhaling a puddle of Armagnac in an immense crystal snifter. If he can also lift his leg over his shoulder and lick his balls...” ~ Conan the Librarian™

“... the erudite and loquacious Peat Worrier who never knowingly avoids a prolix circumlocution.” ~Love and Garbage

“My initial mind picture was of a scanty bikini'd individual wallowing in a bath tub of peat. However I've since learned to warm to him, and like peat he's slow to draw but quick to heat...” ~Crinkly & Ragged Arsed Philosophers

Definition: "to worry peat" v.

"Peat worrying" is the little known or understood process for the extraction of cultural peat, practised primarily in the Lowlands of Scotland by aspirant urban rustics. Primary implements by means of which successful "worrying" is achieved include the traditional oxter-flaughter but also the sharp-edged kailyard and the innovative skirlie stramasher.